Brennan Center for Justice v. Department of State ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRENNAN CENTER FOR JUSTICE,
Plaintiff,
Civil Action No. 15-2200 (BAH)
v.
Chief Judge Beryl A. Howell
DEPARTMENT OF STATE,
Defendant.
MEMORANDUM OPINION
The plaintiff, Brennan Center for Justice, challenges the response of the defendant, the
U.S. Department of State, to the plaintiff’s request, pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, for all agency records pertaining to unpublished international
agreements between the United States and other nations from 1990 to the present. While the
original request sought almost thirty years of records, the parties have narrowed the scope of
their dispute to redacted information in nine documents prepared for and released in full to the
Congress. The parties have now filed cross-motions for summary judgment regarding the
propriety of the disputed redactions, and the defendant has moved to dismiss the plaintiff’s
claims as to those documents no longer disputed. Def.’s Mot. Dismiss, or, in the Alternative,
Summ. J. (“Def.’s Mot.”), ECF No. 27; Pl.’s Cross-Mot. Summ. J. (“Pl.’s Cross-Mot.”), ECF
No. 29. For the reasons discussed below, the defendant’s motion to dismiss and for summary
judgment is granted, and the plaintiff’s cross-motion for summary judgment is denied.
I. Background
The plaintiff’s January 2014 FOIA request sought the defendant’s records regarding
unpublished international executive agreements transmitted to Congress, pursuant to the Case-
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Zablocki Act, 1 U.S.C. § 112b. Pl.’s Mem. Opp’n Def.’s Mot. & Mem. Supp. Cross-Mot. (“Pl.’s
Opp’n”) at 1–2, ECF No. 28. The plaintiff, a nonpartisan law and policy institute, sought these
records under FOIA for the purpose of understanding the “scope and nature of international
agreements that have been withheld from the full Congress and the public on national security
grounds.” Id. at 3 (quoting Compl. ¶ 5). The parties’ narrowed dispute is whether the defendant
must produce the classification levels for each individual unpublished international agreement
listed in nine documents for each of the nine years 2004 through 2011 and 2013. Id. at 5, 8.
A. The United States’s Unpublished International Agreements
The Secretary of State must, as a general rule, publish in a compilation entitled United
States Treaties and Other International Agreements international agreements that the United
States has concluded with another nation. 1 U.S.C. § 112a(a). Under the Case-Zablocki Act, the
Secretary transmits to Congress the text of any such agreement, other than a treaty, “as soon as
practicable after such agreement has entered into force with respect to the United States but in no
event later than sixty days thereafter.” Id. § 112b(a). The Secretary may determine, however,
that a non-treaty agreement need not be published if one of several statutorily-specified criteria
apply. Id. § 112a(b). One such criterion is that “public disclosure of the text of the agreement
would, in the opinion of the President, be prejudicial to the national security of the United
States.” Id. § 112a(b)(2)(D). Upon determining that a particular agreement’s publication would
prejudice the national security, the Secretary must transmit the agreement to the appropriate
House and Senate committees, rather than to the full Congress, “under an appropriate injunction
of secrecy to be removed only upon due notice from the President.” Id. § 112b(a).
The Case-Zablocki Act also requires the Secretary to transmits annually to Congress an
index of international agreements not published or proposed to be published that the United
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States “has signed” or “proclaimed,” or “with reference to which any other final formality has
been executed, or that has been extended or otherwise modified, during the preceding calendar
year.” Id. § 112b(d)(1). This index lists each agreement “by country, date, title, and summary,”
and describes “the duration of activities under [each] agreement and [each] agreement itself.” Id.
The Secretary may submit such index in classified form. Id. § 112b(d)(2).
B. The Plaintiff’s FOIA Request
On January 31, 2014, the plaintiff requested records pertaining to the Secretary’s non-
publication of international agreements pursuant to the Secretary’s authority under 1 U.S.C. §
112a and those agreements’ transmission to Congress in compliance with the Case-Zablocki Act.
Pl.’s Opp’n at 3. For a period of almost thirty years—1990 to the present—the plaintiff sought
(1) the number of international agreements withheld from publication due to a determination that
such agreements’ publication posed a risk to national security; (2) the number of international
agreements withheld from publication pursuant to 22 C.F.R. § 181.8(a)(9), which implements the
Case-Zablocki Act, see id. § 181.1, by providing for non-publication of international agreements
that have received a national security classification; (3) the number of international agreements
transmitted to appropriate congressional committees under an injunction of secrecy; (4) the
number of such agreements presently held under an injunction of secrecy; (5) the number of such
agreements for which an injunction of secrecy was removed; and (6) the title, date, identity of the
parties, and description of those agreements whose injunction of secrecy was removed. Pl.’s
Opp’n at 3–4. The plaintiff also sought, for the period 1972 to the present, any unclassified
reports submitted, in whole or part, to Congress in compliance with the Case-Zablocki Act, and,
for a slightly shorter period, any report submitted under this law to the Speaker of the House of
Representatives and Chairman of the Senate Committee on Foreign Relations. Id. at 4. Finally,
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the plaintiff sought records explaining what constitutes, under 1 U.S.C. § 112b(a), an
“appropriate injunction of secrecy” or a disclosure that is “prejudicial to the national security of
the United States,” or any other terms or provisions of 1 U.S.C. §§ 112a(b)(2)(B), 112a(b)(2)(D),
112a(c), 112b(a), 112b(b), 112b(d), or 112b(e), or 22 C.F.R. §§ 181.2(a)(1) or 181.7. Id.
The defendant, by letter dated February 26, 2014, acknowledged receipt of the plaintiff’s
FOIA request and denied the plaintiff’s request for expedited processing, but did not provide an
estimated date of completion for the request. Id. at 5.
C. The FOIA Lawsuit and the Documents At Issue
Ten and a half months after the plaintiff had submitted its FOIA request, the defendant
had not issued a final response determining whether the defendant would release the requested
records. Id. The plaintiff filed the instant action under FOIA on December 17, 2015, to compel
the defendant to produce the requested records. Id. At that time, the defendant had not finished
processing the plaintiff’s FOIA request. Def.’s Statement of Material Facts as to Which There is
No Genuine Issue (“Def.’s SUMF”) ¶ 1, ECF No. 27. Between June 6, 2016 and January 17,
2017, the defendant undertook a rolling production of records to the plaintiff, producing to the
plaintiff ninety-three records in full and forty-three records in part and withholding another
twenty-two records entirely, which the defendant documented through submission to the Court
of nine Status Reports. See Defendant’s First through Ninth Status Reports, ECF Nos. 14, 15,
16, 18, 19, 21, 22, 23 & 24. Among the records the defendant produced to the plaintiff were a
2012 Index, which contained no classified agreements and which the defendant thus produced in
full, and a similar index for the year 2014, which the defendant redacted in part to remove
information regarding an agreement whose content, but not existence, was classified. Decl. of
Eric F. Stein, Dir., Office of Info. Programs & Servs. (“OIPS”), U.S. Dep’t of State (“First OIPS
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Decl.”) ¶ 19 n.1, ECF No. 27-1. Using the information the defendant produced, the plaintiff was
able to publish a table in a report, entitled The New Era of Secret Law (Oct. 2016), that listed, for
the years 2004 through 2014, the number of published and unpublished international agreements
that the United States concluded, as well as the percentage of such agreements not published.
Pl.’s Opp’n at 6. 1
The parties ultimately agreed to further narrow their dispute to the defendant’s redaction
of the classification levels of each executive agreement listed in the following nine documents,
totaling 164 pages:
1. Document C05997746: a 10-page table entitled “Case Act Index – 2004 (Sorted by
Country)” (“2004 Index”);
2. Document C05997747: a 19-page table entitled “Case Act Index – 2005 (Sorted by
Country)” (“2005 Index”);
3. Document C06005005: a 23-page table entitled “Index of International Agreements
for the 2006 reporting year submitted in fulfillment of the requirements of 1 U.S.C.
112b (d)” (“2006 Index”);
4. Document C06005002: a 19-page table entitled “Index of International Agreements
for the 2007 reporting year submitted in fulfillment of the requirements of 1 U.S.C.
112b (d)” (“2007 Index”);
5. Document C06005001: a 27-page table entitled “2008 Index of International
Agreements Not Printed in TIAS submitted in fulfillment of the requirements of 1
U.S.C. § 112b(d)” (“2008 Index”);
6. Document C06004999: a 17-page table entitled “Index of International Agreements
for the 2009 reporting year submitted in fulfillment of the requirements of 1 U.S.C.
112b (d)” (“2009 Index”);
7. Document C06004998: a 16-page table entitled “Index of International Agreements
for the 2010 reporting year submitted in fulfillment of the requirements of 1 U.S.C.
112b (d)” (“2010 Index”);
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The full citation to the plaintiff’s report is: ELIZABETH GOITEIN, BRENNAN CTR. FOR JUSTICE, THE NEW
ERA OF SECRET LAW 49 tbl. (Oct. 2016),
https://www.brennancenter.org/sites/default/files/publications/The_New_Era_of_Secret_Law_0.pdf.
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8. Document C06004997: a 17-page table entitled “Index of International Agreements
for the 2011 reporting year submitted in fulfillment of the requirements of 1 U.S.C.
112b (d)” (“2011 Index”);
9. Document C06004994: a 16-page table entitled “Index of International Agreements
for the 2013 reporting year submitted in fulfillment of the requirements of 1 U.S.C.
112b (d)” (“2013 Index”).
Pl.’s Opp’n, Ex. A, 2005 – 2011, 2013 Indices, ECF No. 28-1; Joint Status Report, dated Mar.
17, 2017, at 1, ECF No. 25; First OIPS Decl. ¶ 14; Pl.’s Reply Mem. Supp. Pl.’s Cross-Mot.
(“Pl.’s Reply”) at 6, ECF No. 33. The nine disputed documents are each classified as “Secret”
pursuant to Executive Order 13,526 (“EO 13,526”), except for the 2010 Index, which was
classified as “Confidential.” First OIPS Decl. ¶ 15. The defendant initially had labeled the 2011
Index as “Sensitive But Unclassified,” but determined upon review after receiving the FOIA
request that the document had been mislabeled due to a clerical error and contained “Secret”-
level information. Id. ¶¶ 13, 15.
The defendant produced all nine documents, but redacted all substantive information in
the text “except for the consecutive numbers for each listed entry appearing on the left margin of
each index.” Pl.’s Opp’n at 5–6. Using this information, the plaintiff was able to determine the
number of international agreements withheld from publication annually, but not the number of
such agreements that are classified or each agreement’s level of classification—i.e., confidential,
secret- or existence-classified. Id. at 6.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “In FOIA cases, ‘summary
judgment may be granted on the basis of agency affidavits if they contain reasonable specificity
of detail rather than merely conclusory statements, and if they are not called into question by
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contradictory evidence in the record or by evidence of agency bad faith.’” Judicial Watch, Inc.
v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed’n of Am. v. U.S.
Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). Indeed, the D.C. Circuit has observed that
“the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of
the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on
request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep’t of Justice
v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public’s interest
in governmental transparency and “legitimate governmental and private interests that could be
harmed by release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of
Defense, 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear
Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (alterations omitted)), the
FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made
exclusive and must be narrowly construed,” Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565
(2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S.
Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of
Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not
obscure the basic policy that disclosure, not secrecy, is the dominant objective of the
Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
In litigation challenging the sufficiency of “the release of information under the FOIA,
‘the agency has the burden of showing that requested information comes within a FOIA
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exemption.’” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904
(D.C. Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16,
18 (D.C. Cir. 1999)); see also U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 171 (1993)
(noting that “[t]he Government bears the burden of establishing that the exemption applies”);
Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that
the agency invoking an exemption bears the burden “to establish that the requested information
is exempt”); Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This
burden does not shift even when the requester files a cross-motion for summary judgment
because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt
from disclosure,’” while the “burden upon the requester is merely ‘to establish the absence of
material factual issues before a summary disposition of the case could permissibly occur,’” Pub.
Citizen Health Research Grp., 185 F.3d at 904–05 (quoting Nat’l Ass’n of Gov’t Emps. v.
Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).
An agency may carry its burden of showing an exemption was properly invoked by
submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld
documents, or both, to demonstrate that the government has analyzed carefully any material
withheld and provided sufficient information as to the applicability of an exemption to enable the
adversary system to operate. See Judicial Watch, Inc., 726 F.3d at 215 (“In FOIA cases,
‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable
specificity of detail rather than merely conclusory statements, and if they are not called into
question by contradictory evidence in the record or by evidence of agency bad faith.’” (alteration
adopted) (quoting Consumer Fed’n of Am., 455 F.3d at 287)); CREW, 746 F.3d at 1088 (noting
that an agency’s burden is sustained by submitting an affidavit that “‘describe[s] the
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justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the
information withheld logically falls within the claimed exemption, and [is] not controverted by
either contrary evidence in the record nor by evidence of agency bad faith’” (quoting Larson v.
U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009))); Oglesby v. U.S. Dep’t of Army, 79
F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that an agency’s description “should reveal as
much detail as possible as to the nature of the document, without actually disclosing information
that deserves protection[,] . . . [which] serves the purpose of providing the requestor with a
realistic opportunity to challenge the agency’s decision.”) (internal citation omitted). While “an
agency’s task is not herculean” it must “‘describe the justifications for nondisclosure with
reasonably specific detail’ and ‘demonstrate that the information withheld logically falls within
the claimed exemption.’” Murphy, 789 F.3d at 209 (quoting Larson, 565 F.3d at 862).
“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of Defense, 715 F.3d 937, 941 (D.C.
Cir. 2013) (quoting ACLU v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir.
2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-
disclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d
518, 522 (D.C. Cir. 2015), by reviewing the Vaughn index and any supporting declarations “to
verify the validity of each claimed exemption.” Summers v. U.S. Dep’t of Justice, 140 F.3d
1077, 1080 (D.C. Cir. 1998). In addition, the court has an “affirmative duty” to consider whether
the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep’t of
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Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to court’s “affirmative duty to consider the
segregability issue sua sponte”) (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.
2007)); Stolt–Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir.
2008) (“[B]efore approving the application of a FOIA exemption, the district court must make
specific findings of segregability regarding the documents to be withheld.”) (quoting Sussman v.
U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007))); Trans-Pac. Policing Agreement v.
U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (“[W]e believe that the District Court
had an affirmative duty to consider the segregability issue sua sponte . . . even if the issue has not
been specifically raised by the FOIA plaintiff.”); see also 5 U.S.C. § 552(b) (“Any reasonably
segregable portion of a record shall be provided to any person requesting such record after
deletion of the portions which are exempt under this subsection.”).
III. ANALYSIS
The nine disputed documents each list alphabetically, by non-United States signatory
nation, unpublished international agreements that the United States has entered, including some
the very existence of which is classified. First OIPS Decl. ¶ 16. After the parties narrowed their
dispute, the defendant moved for dismissal in part and for summary judgment in part, asserting
that the redacted information implicated national security concerns and thus was properly
withheld under FOIA’s Exemption 1. Def.’s Mot.; Def.’s Mem. Supp. Mot. (“Def.’s Mem.”) at
4–6, ECF No. 27. 2 The defendant contends that “all reasonably segregable material has been
provided,” because the classification levels, even if “seemingly innocuous information” taken by
2
The defendant’s motion to dismiss the plaintiff’s claims as to those documents that no longer are at issue,
Def.’s Mot.; see also Def.’s Mem. at 2–4; Def.’s Reply Pl.’s Opp’n & Opp’n Pl.’s Cross-Mot. (“Def.’s Reply”) at 1–
2, ECF No. 31, is granted because the plaintiff has offered no argument as to why dismissal is inappropriate with
respect to documents that already have been produced to the plaintiff. Accordingly, the plaintiff’s claims are
dismissed as to all documents but the nine documents that remain at issue.
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itself, may if produced cause damage to national security interests “when considered in context
of a mosaic of other [publicly-known] information.” Def.’s Mem. at 7.
While not disputing the defendant’s assertion that the documents fall within the scope of
FOIA Exemption 1, the plaintiff nonetheless characterizes the defendant’s “mosaic” argument as
“not logical,” “convoluted and wholly speculative,” and seeks in camera review of the
documents to determine whether additional segregable material may be disclosed. Pl.’s Opp’n at
8, 11–14. The sole dispute that remains before the Court thus is whether the classification levels
of the agreements listed in the nine disputed documents are segregable and subject to disclosure. 3
In view of the defendant’s credible affidavits explaining how the classification levels’ production
would threaten the national security, and the weight that must be accorded to such explanations,
the defendant has met its burden of showing that the documents contain no further segregable
information that need be produced to the plaintiffs. Thus, as explained more fully below, the
defendant is, and the plaintiff is not, entitled to summary judgment.
A. Classification to Protect National Security
FOIA’s first exemption applies to “matters that are . . . specifically authorized under
criteria established by an Executive order to be kept secret in the interest of national defense or
foreign policy and . . . are in fact properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1). Exemption 1 “cover[s] not only the content of protected government records but
also the fact of their existence or nonexistence.” Larson, 565 F.3d at 861. In a case involving
3
The plaintiff observes that the “[d]efendant rejected plaintiff’s offer to settle the litigation by providing, for
each index, a count of how many agreements fell within each classification category—a solution that could have
been implemented in a manner of minutes without implicating the hypothetical ‘mosaic theory’ scenario posited by
the agency.” Pl.’s Opp’n at 8. The plaintiff’s settlement offer is irrelevant to the validity of the defendant’s
withholdings, as any count of the number of agreements of each classification category would have constituted a
new record that FOIA does not oblige the defendant to create. See Forsham v. Harris, 445 U.S. 169, 186 (1980)
(“[T]he FOIA imposes no duty on the agency to create records.”); Yeager v. DEA, 678 F.2d 315, 321 (D.C. Cir.
1982) (“[A]n agency is not required by FOIA to create a document that does not exist in order to satisfy a request.”).
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records withheld pursuant to Exemption 1, “a reviewing court ‘must recognize that the Executive
departments responsible for national defense and foreign policy matters have unique insights into
what adverse [e]ffects . . . might occur as a result of public disclosures of a particular classified
record.’” Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993) (quoting Military Audit
Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)) (internal quotation marks omitted). As
courts “lack the expertise necessary to second-guess such agency opinions in the typical national
security FOIA case,” Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980), they “accord
‘substantial weight’ to agency affidavits” in national security cases, Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352
(D.C. Cir. 1978)).
Although a district court “accord[s] substantial weight to an agency’s affidavit
concerning the details of the classified status of the disputed record,” the court does not
“relinquish[] [its] independent responsibility” “to conduct a de novo review of the classification
decision.” Goldberg v. U.S. Dep’t of State, 818 F.2d 71, 77 (D.C. Cir. 1987) (emphasis and
internal quotation marks omitted) (quoting Military Audit Project, 656 F.2d at 738). A district
court nonetheless must mind “that any affidavit or other agency statement of threatened harm to
national security will always be speculative to some extent, in the sense that it describes a
potential future harm rather than an actual past harm.” Halperin, 629 F.2d at 149. “[T]o require
an actual showing that particular disclosures of” classified information would cause “identifiable
concrete harm” would “overstep[] by a large measure the proper role of a court in a national
security FOIA case.” Id.
EO 13,526 allows an agency to classify information if the agency “determines that the
unauthorized disclosure of the information reasonably could be expected to result in damage to
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the national security, which includes defense against transnational terrorism, and the original
classification authority is able to identify or describe the damage.” Exec. Order No. 13,526 §
1.1(a)(4) (Dec. 29, 2009). “Damage to the national security” is defined as “harm to the national
defense or foreign relations of the United States from the unauthorized disclosure of information,
taking into consideration such aspects of the information as the sensitivity, value, utility, and
provenance of that information.” Id. § 6.1(l). Information properly is classified as “Secret” if its
“unauthorized disclosure . . . reasonably could be expected to cause serious damage to the
national security that the original classification authority is able to identify or describe,” and as
“Confidential” if its “unauthorized disclosure . . . reasonably could be expected to cause damage
to the national security that the original classification authority is able to identify or describe.”
Id. § 1.2(a)(2), (3). “Information that has not previously been disclosed to the public . . . may be
classified or reclassified after an agency has received a [FOIA] request . . . if such classification
meets the requirements of this order and is accomplished on a document-by-document basis with
the personal participation or under the direction of” an appropriate supervisor. Id. 1.7(d).
EO 13,526 contemplates that “[c]ompilations of items of information that are individually
unclassified may be classified if the compiled information reveals an additional association or
relationship that: (1) meets the standards for classification under this order; and (2) is not
otherwise revealed in the individual items of information.” Id. § 1.7(e). In this way, EO 13,526
recognizes that “the business of foreign intelligence gathering in this age of computer technology
is more akin to the construction of a mosaic than it is to the management of a cloak and dagger
affair,” as “[t]housands of bits and pieces of seemingly innocuous information can be analyzed
and fitted into place to reveal with startling clarity how the unseen whole must operate.” Halkin
v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978); cf. United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir.
13
1989) (“Things that did not make sense to the District Judge would make all too much sense to a
foreign counter-intelligence specialist who could learn much about this nation’s intelligence-
gathering capabilities from what these documents revealed about sources and methods.”).
The Supreme Court has recognized in the FOIA context that “[f]oreign intelligence
services have both the capacity to gather and analyze any information that is in the public
domain and the substantial expertise in deducing” sensitive national security information “from
seemingly unimportant details.” CIA v. Sims, 471 U.S. 159, 178 (1985). “[T]he very nature of
the intelligence apparatus of any country is to try to find out the concerns of others; bits and
pieces of data ‘may aid in piecing together bits of other information even when the individual
piece is not of obvious importance in itself.” Id. (quoting Halperin, 629 F.2d at 150). Thus,
“[w]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad
view of the scene and may put the questioned item of information in its proper context.” Id.
(quoting Halkin, 598 F.2d at 9). The D.C. Circuit has found persuasive “similar mosaic
arguments in the context of national security.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of
Justice, 331 F.3d 918, 928 (D.C. Cir. 2003); see also id. at 929 (“While the name of any
individual detainee may appear innocuous or trivial, it could be of great use to al Qaeda in
plotting future terrorist attacks or intimidating witnesses in the present investigation.”); Edmonds
v. U.S. Dep’t of Justice, 405 F. Supp. 2d 23, 32–33 (D.D.C. 2005) (accepting the government’s
mosaic argument in a FOIA case); Edmonds v. FBI, 272 F. Supp. 2d 35, 47 (D.D.C. 2003)
(granting the government partial summary judgment in a FOIA case where withheld information
“was intertwined with the sensitive matters at the heart of the case and could not be further
segregated and . . . other categories of information were withheld because, in view of the
information relevant to this matter that is already in the public arena, they would tend to reveal
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matters of national security even though the sensitivity of the information may not be readily
apparent in isolation.”).
B. The Defendant Has Properly Withheld the Documents at Issue
Set against this standard, the defendant has met its burden to show that all reasonably
segregable material in the nine documents at issue have been produced. The defendant argues
that the documents “ha[ve] been properly withheld under Exemption 1 because [their] release
would reveal sensitive aspects of U.S. foreign relations, in particular, international agreements
the existence of which implicates issues of U.S. national security.” Def.’s Mem. at 6. “Release
of the information withheld,” the defendant argues, “has the potential to inject friction into, or
cause damage to, a number of the country’s bilateral relationships with countries whose
cooperation is important to U.S. national security.” Id. (citing First OIPS Decl. ¶ 11). The
defendant further argues that the withheld information “pertains to foreign relations or foreign
activities of the United States, including confidential sources,” and that its production
“reasonably could be expected to cause serious damage or damage to the national security.” Id.
(citing First OIPS Decl. ¶¶ 5–9, 14–16).
An analyst for a foreign government could use the information contained in each entry
reflecting an agreement’s “title,” “entry in force,” “summary,” and “expiration” to determine
which nations have concluded existence-classified agreements with the United States, even if
those nations’ identities were redacted. First OIPS Decl. ¶ 17. Moreover, because the
documents at issue list international agreements alphabetically by nation, redacting information
relating only to existence-classified agreements would not suffice to protect the classified
information, as an analyst could discern at least some of the nations with which the United States
has concluded existence-classified agreements by seeing where within the alphabetical list the
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redacted information appears. Id. ¶ 16. Even where alphabetization leaves ambiguity as to the
nation with which the United States has concluded an existence-classified agreement, the analyst
could combine the information the plaintiff seeks with other publicly-available information to
identify the nations with which the United States has existence-classified agreements. Id. In
these ways, the analyst could discover classified information for which public disclosure could
harm the United States’ relations with nations that rely on the United States’ commitment not to
divulge existence-classified agreements’ existence. Id.
Producing only each agreement’s classification-level notation likewise would not suffice
to protect classified information, because any such notations the defendant could produce would
be listed alphabetically by nation, even if the nations’ identities were redacted. Id. ¶ 18. Using
alphabetically-arranged copies of unclassified agreements exempt from publication, which the
defendant makes available to the public upon request, see 1 U.S.C. § 112a(b)(3), a researcher
could fill in all rows of the produced documents marked “unclassified,” then deduce which
nations have concluded existence-classified agreements with the United States based on where
any existence-classified notations fall alphabetically in these lists. First OIPS Decl. ¶ 18.
The plaintiff provides no indication that the defendant has fallen short of acting in good
faith to produce all reasonably segregable material; indeed, the defendant’s production of the
2012 and 2014 Case-Zablocki Act Indices, which the defendant determined required no or little
redaction, to protect classified information, see id. ¶ 19 n.1, shows otherwise. The plaintiff
instead argues that the defendant can produce many, if not most, of the classification levels in the
nine documents at issue without disclosing the identities of nations which the United States has
concluded existence-classified agreements. Pl.’s Opp’n at 11–14. The plaintiff acknowledges
that an enterprising foreign analyst could use publicly-available information to ascertain the
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identities of those nations in each document with which the United States has concluded
unclassified agreements, and then identify nations with which the United States has concluded
existence-classified agreements where such existence-classified agreements fall between two
unclassified agreements with the same nation, as in the following illustration:
Classification Status Nation
Unclassified [redacted] [Lalaland, filled in by researcher]
Existence-Classified [redacted]
Unclassified [redacted] [Lalaland, filled in by researcher]
Id. at 12. Here, an analyst easily could determine that the United States has concluded an
existence-classified agreement with Lalaland, because unclassified agreements with Lalaland
flank the existence-classified agreement on both sides. See id. The plaintiff asserts, however,
that an analyst who sees only the following would be unable to determine with which nation the
United States has concluded an existence-classified agreement:
Classification Status Nation
Unclassified [redacted] [Lalaland, filled in by researcher]
Existence-Classified [redacted]
Unclassified [redacted] [Mamaland, filled in by researcher]
Id. An analyst presented with this information, the plaintiff argues, would be unable to
determine whether the United States has concluded an existence-classified agreement with
Lalaland or Mamaland. See id. Likewise, the plaintiff asserts, an analyst will be unable to
determine with which of Lalaland, Mamaland, or Nanaland the United States has concluded an
existence-classified agreement if she sees the following:
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Classification Status Nation
Unclassified [redacted] [Lalaland, filled in by researcher]
Existence-Classified [redacted]
Unclassified [redacted] [Nanaland, filled in by researcher]
Id. The plaintiff similarly asserts that the analyst will be unable to determine the identity of any
nation that has concluded an existence-classified agreement with the United States if she sees:
Classification Status Nation
Unclassified [redacted] [Lalaland, filled in by researcher]
Existence-Classified [redacted]
Existence-Classified [redacted]
Existence-Classified [redacted]
Unclassified [redacted] [Nanaland, filled in by researcher]
Id. at 13.
Based on these examples, the plaintiff argues, two conditions must obtain for the
defendant’s mosaic theory to prevail: each page of each document at issue must list an existence-
classified agreement that is (1) bookended by unclassified agreements, which (2) the United
States has concluded with the same nation. Id. at 11–13. Even where such conditions obtain, the
plaintiff argues, “the agency could easily engage in a partial redaction of the classification levels
on those pages, redacting this information in enough entries to throw off the alphabetic
deduction, while releasing the classification levels on the others.” Id. at 13. As such, the
plaintiff says, the defendant’s assertion that it cannot segregate and release any information that
these documents contain is “patently overbroad.” Id. At a minimum, the plaintiff asserts, the
documents should be inspected in camera to “determine whether the agency’s hypothetical
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conditions are actually present.” Id. (citing Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C.
Cir. 1998) (observing that “in camera inspection does not depend on a finding or even tentative
finding of bad faith” (alterations omitted))).
The plaintiff’s argument is flawed because even the limited disclosures the plaintiff seeks
could cause damage to the national security. The sequencing that the plaintiff acknowledges
would enable a foreign analyst to determine the identity of a nation with which the United States
has concluded an existence-classified agreement—that agreement’s location between two
unclassified agreements concluded with the same nation—in fact occurs in the withheld
documents. Second Decl. of Eric F. Stein, Dir., OIPS (“Second OIPS Decl.”) ¶ 11, ECF No. 31-
1. Moreover, disclosure of agreements’ classification levels could damage the national security
even where such disclosure would not enable an analyst to identify with certainty the nations
with which the United States has concluded existence-classified agreements, because the
defendant “has the right to assume that foreign intelligence agencies are zealous ferrets” who
may draw useful inferences from partial bits of information that form a larger mosaic. Larson,
565 F.3d at 864 (quoting Gardels v. CIA, 689 F.2d 1100, 1106 (D.C. Cir. 1982)). The plaintiff
also fail to account for the reality that the United States is not equally likely to conclude an
agreement, let alone an existence-classified agreement, with every nation; as such, the possibility
that any nation in the world might be counter-party to a particular existence-classified agreement
does not adequately protect the counter-party nation’s identity, given that the actual pool of
potential counter-parties is more limited. Second OIPS Decl. ¶ 12. 4 As the defendant observes,
4
The defendant, addressing an example that the plaintiff presented, elaborates that “[b]ased on what is
publicly known about the United States’ relations with” five specified nations, “one could then make an informed
guess about the name of the country that concluded the existence-classified agreement.” Def.’s Reply at 6. The
plaintiff observes that “quick Google searches reveal that the U.S. has bilateral agreements with each of those [five]
countries,” and argues that “[i]t is thus unclear, at best, how one could make an informed guess as to the identity of
the particular country in that example.” Pl.’s Reply at 4 (internal quotation marks omitted). This is probative of
little—the plaintiff identifies no evidence that the United States is materially likelier to have concluded an existence-
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“someone knowledgeable of the complex web of U.S. diplomatic relations with other countries
could look at a gap in the alphabetical list and predict with a high degree of certainty the country
that would fill that gap.” Id. Finally, disclosure of some pages of the documents at issue would
allow an analyst to infer that the withheld pages contain existence-classified information. Id. ¶
15. Using the methods described above, an analyst could compare the disclosed pages with
publicly-available unclassified agreements to determine which section of the alphabet the
withheld pages covered. Id. This information, in conjunction with other publicly-available
information about U.S. foreign relations, could allow a researcher to identify “with a reasonable
degree of certainty” nations with which the United States had concluded existence-classified
agreements. Id.
Identification of nations with which the United States might potentially have concluded
an existence-classified agreement is not the only danger to the national security that production,
in whole or part, of the documents at issue may cause. Even mere public speculation that a
particular nation, or subset of nations, has concluded one or more existence-classified
agreements with the United States could reasonably be expected to cause damage to the national
security. Such agreements are existence-classified in part because classification allows the
United States to maintain military and intelligence relationships with nations whose populaces or
neighbors might not favor such cooperation. Id. ¶ 13.
For these reasons, the defendant has made a “logical” and “plausible” showing that
disclosure of any portion of the documents at issue may harm the national security. Judicial
classified agreement with a nation with which the United States has concluded an unclassified agreement than with a
nation with which the United States has not concluded an unclassified agreement. In any event, foreign analysts
presumably have at their disposal more advanced analytical tools for identifying nations with which the United
States has concluded existence-classified agreements than Google Search. See Larson, 565 F.3d at 864. What is
“unclear” to the plaintiff, Pl.’s Reply at 4, may, in the context of publicly-available information aggregated via
sophisticated analytical methods, nonetheless be perfectly clear to a foreign government. Yunis, 867 F.2d at 623.
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Watch, Inc., 715 F.3d at 941. As such, and absent any indication of bad faith on the defendant’s
part, see Judicial Watch, Inc., 726 F.3d at 215, in camera review is unnecessary to conclude that
the defendant has met its burden to obtain summary judgment. See PHE, Inc. v. Dep’t of Justice,
983 F.2d 248, 253 (D.C. Cir. 1993) (“[I]n camera review is generally disfavored,” and “is not a
substitute for the government’s obligation to justify its withholding in publicly available and
debatable documents.” (internal quotation marks omitted)); Weissman v. CIA, 565 F.2d 692, 697
(D.C. Cir. 1977) (“[I]n camera proceedings are particularly a last resort in ‘national security’
situations.”).
IV. Conclusion
For the foregoing reasons, the plaintiff’s claims are dismissed as to all documents but the
nine disputed documents, as to which the defendant’s motion for summary judgment is granted,
and the plaintiff’s cross-motion for summary judgment is denied. An appropriate Order
accompanies this Memorandum Opinion.
Date: November 6, 2017
__________________________
BERYL A. HOWELL
Chief Judge
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